NARASIMHAM, J. -
(1.) THIS is an appeal from the appellate judgment of the District Judge of Cuttack reversing the judgment of the Munsif of Jaipur and dismissing the appellants -plaintiffs suit for ejeatment of the
defendant -respondent horn a house in village Rebana in Jaipur sub division.
(2.) IT is an unchallenged fact that the disputed property consists of survey plot Nos. 416 and 447 having an area of .09 decimals and .04 decimals respectively and recorded in Khata No. 8 in the last settlement
operations. The Khatian, however, was not exhibited in the lower Court but the statement in the plaint
giving the aforesaid plot numbers, area and khata number have not been controverted in the written
statement. It is also an unchallenged fact that the said two plots lie in the Basti of the village and at
present there is a house standing thereon with its appurtenant Bari. It is further admitted by the parties that
the previous owner of the property was one Rukuni Bewa. The plaintiffs claimed to have purchased the
property from her by two kabalas dated 8 -4 -1943 and 25 -6 -1943. They alleged that the defendant was
occupying the house as a tenant -at -will of Rukuni Bewa at a monthly rental of Rs. 1 -8 -0 and that after the
plaintiffs' purchase the defendant was asked to vacate the house but he refused. Thereupon, the plaintiffs
issued a notice to quit on 2.9 -1943 and then instituted the present suit for declaration of their title,
recovery of possession after eviction of the defendant therefrom and also for consequential reliefs such as
recovery of arrear rental due from the defendant. The defendant contended that he had purchased the
same property from Rukuni Bewa by an oral sale sometime in 1942 and that at that time there was no
house standing on the plots. He claimed to have constructed a building thereon and to be staying there in
his own light. He therefore challenged the title of the plaintiffs on the ground of prior sale from the
original owner. The trial Court disbelieved the defendant's story of oral sale and held that the plaintiffs
acquired valid title to the property by the two registered kabalas executed in their favour by Rukuni. But
he disbelieved the plaintiffs' story of the defendant occupying the house as a tenant and consequently
while decreeing the plaintiffs' suit for ejectment and recovery of possession he disallowed their claim for
arrears of rent. The lower appellate Court however accepted the defendant's story of prior oral sale
accompanied by delivery of possession from Rukuni Bewa and held that the defendant's title to the
property must prevail over the subsequent sale by Rukuni Bewa in favour of the plaintiffs even though the
latter might have been made by registered documents. As the value of the property was admittedly below
Rs. 100 he held that under Schedule 4, Transfer of Property Act, title validly passed by oral sale
accompanied by delivery of possession. One of the points taken up before appellate Court was that
notwithstanding anything contained in Section 54, T. P. Act, all transfers of occupancy holdings or
portions of the same, irrespective of their value, should be made by registered instruments as expressly
provided in Section 81 -(l), Orissa Tenancy Act, as amended by Orissa Act VIII  of 1938, and that
consequently the oral sale in favour of the defendant could not convey any title. The learned lower
appellate Court has not dealt with this question in a satisfactory manner. It is difficult to say what exactly
his decision is on this question. He seems to have held that Section 54, T. P. Act, would prevail and that
the defendant acquired good title by oral sale accompanied by delivery of possession.
In the second appeal the findings on facts of the lower appellate Court were not challenged but the following two questions of law were argued at great length (i) Section 81 (1), Orissa Tenancy Act, should
prevail over Schedule 4, T. P. Act, and consequently the sale of an. occupancy holding or a portion thereof
without a registered instrument would not convey any title; and (ii) the suit was for ejectment of the
defendant on the ground that he was a tenant and when the story (as?) to tenancy was disbelieved by both
the lower Courts it wag not open to this Court to grant relief to the plaintiffs on the ground that the
defendant was a trespasser, thereby completely changing the nature of the suit.
(3.) THE first point involves an interpretation of the provisions of the Government of India Act, 1986, under which the Orissa Legislature passed the Orissa Tenancy (Amendment) Act of 1938 (Orissa Act (VII  of
1938), and inserted Schedule 1 (1) which runs as follows: 'Every transfer of an occupancy holding or a portion or share thereof whether by sale, exchange or gift'
shall be made by registered instrument except in the case of a sale in execution of a decree or of a
certificate signed under the Bihar and Orissa Public Demands Recovery Act, 1914.'
As already pointed out, the disputed plots are in Khata No. 8 and consequently they form part of an
occupancy holding. The aforesaid section of the O. T. Act would therefore, apply unless it can be said that
Schedule 4, T. P. Act would override the provisions of that section of the Orissa Act. Under the
Government of India Act, 1935, legislation in respect of 'transfer of property other than agricultural land'
was dealt with in item 8, Concurrent List, and the Centre as well as the Province had concurrent powers to
legislate on the subject. But under item 21, Provincial legislative list (List II), 'transfer, alienation and
devolution of agricultural land' was a subject exclusively in the Provincial field. Doubtless, Schedule 4, T.
P. Act, would ordinarily apply to agricultural as well as non -agricultural land. But that Act was 'an
existing Indian law' under the Government of India Act (see Schedule 11 (2) and in respect of) matters
included in the Provincial legislative list (List II) the Provincial Government had lull powers to legislate
even though that legislation may have the effect of amending, modifying or repealing any of the
provisions of such a law in respect of that subject. This follows as a necessary result from a construction
of Sub -section (3) of Schedule 00 read with Schedule 92 of the Government of India Act, 1935. When the
Orissa Legislature passed the Orissa Tenancy (Amendment) Act, 1938, it purported to legislate in respect
of matters covered by item 21, List II, which may be quoted in full:
'Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; en cumbered and attached estates; treasure trove.'
The subject -matter of Sub -section (l) of Section 30 of the Orissa Act, is relatable to 'transfer of agricultural land' as specified in that item. Therefore there seems to be no doubt that so far as transfer of
agricultural land is concerned, the Provincial Legislature had exclusive jurisdiction and the provisions of
Section 31 (l) would necessarily override the provisions of Section 54, T. P. Act.;